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Plouffe v. Bayview Loan Servicing, LLC

United States District Court, E.D. Pennsylvania

June 13, 2018

WILLIAM C. PLOUFFE, JR., Plaintiff,
v.
BAYVIEW LOAN SERVICING, LLC, et al., Defendants.

          MEMORANDUM

          STENGEL, C.J.

         William C. Plouffe, a former attorney representing himself in this matter, claims that after he defaulted on his mortgage, his mortgage providers mishandled his requests for modification in violation of federal law. The defendants in this case are Bayview Loan Servicing, LLC; M & T Bank; and two individual Bayview employees.

         Mr. Plouffe's remaining claims[1] fall under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601 et seq., and RESPA's corresponding regulations (Regulation X). The defendants' motion for summary judgment is currently before me. For the following reasons, I will grant the defendants' motion in its entirety. I.BACKGROUND[2]

         William C. Plouffe, Jr. owns his residence at 215 Highland Avenue in Kutztown, Pennsylvania. (Doc. No. 16 ¶ 12.) On December 3, 2007, he entered a mortgage agreement with Mortgage America, Inc. for $137, 750. (Ex. A, at Ex. “B”.)

         A. Mr. Plouffe's First Default

         On August 4, 2010, the collections department of Chase Home Finance LLC sent Mr. Plouffe a default notice, listing $2, 581.04 in past due payments. (Ex. C.) In order to resolve the default, the plaintiff obtained a Pennsylvania Housing Finance Agency (PHFA) Homeowner's Emergency Mortgage Assistance Program (HEMAP) mortgage on March 8, 2011 for $49, 500. (Ex. D.)

         B. Mr. Plouffe's Second Default

         Unfortunately, the HEMAP mortgage did not prevent Mr. Plouffe from defaulting again. (Doc. No. 16 ¶ 15; Doc. No. 55 ¶ 7.) Mr. Plouffe then applied for additional help from the PHFA but was denied on November 13, 2013. (Ex. G.) He next turned to M & T Bank, and on July 15, 2014, entered a loan modification agreement, which required monthly payments of $630.10. (Ex. A, at Ex. “E”.) But again, Mr. Plouffe failed to keep up with his payments.

         C. Mr. Plouffe's Third Default

         M & T Bank sent Mr. Plouffe an “Act 91 notice, ” dated October 1, 2014, stating that his mortgage was in default and that the lender intended to foreclose on his home. (Ex. A, at Ex. “F”.) On October 6, 2014, Bayview sent Mr. Plouffe a letter identifying itself as an “agent for your servicer, M&T Bank” and providing alternative options to foreclosure, such as forbearance and mortgage modification.[3], [4] (Ex. J.) In his amended complaint, Mr. Plouffe states that he “sought the advice of housing counselors and submitted his application, ” presumably for a mortgage modification, but he provides no further evidence or explanation of how he did so at that time. (Doc. No. 16 ¶ 27.)

         Mr. Plouffe claims that “[d]uring this time period” he had “several telephone calls” with Mr. Hakeem Collins (a Bayview asset manager and one of the two individual defendants in this case), and that Mr. Collins assured him “there would be no legal foreclosure proceedings started/continued against him as long as there was a pending application for the Program by Plouffe.” (Id. ¶ 28.) Mr. Plouffe has not provided any evidence or further explanation to support the existence of such statements by Mr. Collins.[5] And Mr. Collins makes no such assurances in any of the nine recordings of calls provided by the defendants.[6] (Ex. AW.)

         In a letter dated December 16, 2014, Bayview responded to a “loan workout package” submitted by Mr. Plouffe (presumably the one referenced above, from paragraphs 27-28 of Mr. Plouffe's amended complaint). (Ex. K.) This letter stated:

Within 30 days of receipt of all the required documentation, we endeavor to provide you with a written decision regarding your eligibility for one of our assistance programs. . . .
If your loan is delinquent, collection/foreclosure activity currently in progress will continue to proceed during the review process of your request for a workout. This letter and the loan workout review process shall not waive any of our rights or your obligations under the note and other loan documents. In other words, you are responsible to continue making your loan payments.

(Id. (emphasis added).)

         A second December 16, 2014 letter from Bayview noted that Mr. Plouffe's “loan workout request” was missing four documents, which were required for review of the application. (Id.) These documents were:

(1) “Missing ‘Date Hardship Began' on page 3 of Freddie Mac Form 710, Uninformed Borrower Assistance Form”
(2) “Missing Food Stamp award letter and 2 months proof of receipt and/or 2 most recent bank statement [sic] which shows income”
(3) “Missing Hardship Letter (please explain why you fell behind on your Mortgage signed & dated)”
(4) “Unemployment Award Letter and 2 months proof of receipt and/or 2 most recent bank statement [sic] which shows income (If Applicable)”

(Id.)

         This letter repeated: “If your loan is delinquent, collection/foreclosure activity currently in progress will continue to proceed during the review process of your request for a workout.” (Id.) Several paragraphs later, it stated: “After we receive all required documentation, we will process your request as quickly as possible. While we consider your request, your home will not be referred to foreclosure.”[7] (Id. (emphasis added).)

         This second December 16, 2014 letter did the following: It made it clear that Bayview would not review Mr. Plouffe's application without the missing information; it set a deadline of January 15, 2015 for completion of the application; and it provided a fax number and address to which Mr. Collins could send the requested documentation. (Id.)

         In response, on December 22, 2014, Mr. Plouffe faxed his hardship letter (which contained the date his hardship began), his notice of financial eligibility for unemployment compensation, and a letter stating that he had been approved for food stamps. (Ex. L.)

         Then, in a letter dated December 30, 2014, Bayview requested three further documents by January 29, 2015.[8] (Ex. M.) This second request reiterated a previous request for food stamp documentation; the other two items were new:

(1) “Borrower to provide homeowner's insurance invoice reflecting bill to lender or paid in full due to currently expired [sic]. Insurance quote is not acceptable”
(2) “Borrower to provide two months proof of receipt for food stamp income.”
(3) “Borrower to provide 2013 Tax Return 2013 [sic]. If not filled [sic] then AM to pull tax transcript to check non-filing status.”

(Ex. M.)

         On January 2, 2015, Bayview sent Mr. Plouffe a third request, this time asking for the following documents by February 1, 2015 (with requests 1, 3, and 4 almost identical to previous requests):

(1) “Borrower to provide homeowner's insurance invoice reflecting bill to lender or paid in full due to currently expired. Insurance quote is not acceptable”
(2) “Investor requires for lender placed insurance to be remove [sic] on file and borrower to obtain homeowner insurance. Please provide a copy of Homeowner Insurance Declaration Page. If borrower do not have [sic] homeowner insurance, BLS/M&T Bank will pay for insurance premium. Provide insurance company direct billing information:
‘M&T BANK
ISAO P.O. Box 5738
Springfield, OH 45501'”
(3) “Borrower to provide 2 months proof of receipt and/or 2 most recent bank statement which shows food stamp income.”
(4) “Borrower to provide 2013 Tax Return with all scheduled and attachments [sic]. If not filled [sic] then AM to pull tax transcript to check non-filing status.”

(Ex. O.)

         Mr. Plouffe responded with a faxed a letter, dated January 29, 2015, stating that his insurance company had already sent the requested information; also stating that he received a form, not a receipt, from the Department of Public Welfare when he “requested a receipt” for his foodstamps; and asking why Bayview had not acknowledged previously receiving his proof of foodstamp benefits. (Ex. AU.) Mr. Plouffe attached the following to this faxed letter: two “insurance estimates, ” one “certificate of insurance, ” and the food stamp form, which reflected $193 in monthly benefits. (Id.) In his response to the defendants' motion for summary judgment, Mr. Plouffe reiterates his belief that he had “corrected all of the errors except for the Foodstamp Receipts, ” and as for the receipts, he said he “discussed the matter on the telephone with Bayview and Collins, explaining that the Pennsylvania Department of Public Welfare did not issue such receipts and arranged for the forwarding of a document . . . that indicated that foodstamps had been issued to Plouffe” (presumably the document attached to his January 29, 2015 letter). (Doc. No. 57 ¶ 17.)

         After the February 1, 2015 deadline had passed, Bayview sent Mr. Plouffe a letter, dated February 6, 2015, stating that he was no longer eligible for a mortgage modification because he had failed to supply necessary documentation.[9] (Ex. P.) This letter did not specify what information remained missing. (Id.)

         D. Mr. Plouffe Requests Information from Bayview Regarding his Mortgage

         Mr. Plouffe responded to Bayview's February 6, 2015 letter denying his application for modification with a letter dated February 12, 2015. (Ex. Q.) He stated: “You never explained how the documentation I sent was not sufficient. You never addressed the issue of a forebearance [sic] which we talked about and which you said could not be evaluated until after the eligibility for a loan adjustment had been denied.” (Id.) In this letter, Mr. Plouffe explicitly requested “the standards of Freddie Mac which you say I failed to meet, as I previously qualified for this type of help from you and M&T Bank and my circumstances have not changed, ” as well as the name and contact of both Mr. Collins's supervisor and “the appropriate person at M&T Bank for the service of legal process for your acts on their behalf.” (Id.) Mr. Plouffe sent an additional letter dated February 20, 2018 requesting essentially the same information. (Ex. R.)

         On February 18, 2015, Bayview sent Mr. Plouffe a letter with information about a “deed-in-lieu” offer, asking him to call Mr. Collins at Bayview for further information. (Ex. S.) Two days later, Bayview again wrote to explain that Mr. Collins had repeatedly tried to reach Mr. Plouffe by phone but was unable to do so. (Ex. T.) This February 20, 2015 letter explained that it was “important” for Mr. Plouffe to contact Mr. Collins “immediately” to discuss possible options if he still could not afford his mortgage payments.[10] (Id.) A separate letter from Bayview, also dated February 20, informed Mr. Plouffe that there may be options available to him and that he needed “to take action by completing and returning the entire Borrower Response Package by March 22, 2015” if he was interested. (Ex. U.)

         Mr. Plouffe sent Bayview a letter, dated March 1, 2015. (Ex. V.) It stated that he received “the packet, ” presumably the Borrower Response Package, and it included several requests for information, including the following:[11]

• “[Bayview's correspondence] included another application packet. Does this mean that you are going to start the application process over again? If so, you already have all of the documentation, which has not changed, unless you want more. Do specify.”
• “Also, in this packet your [sic] state that there will be no hold on foreclosure while the application is being processed. This contradicts what you previously stated. Does this mean this re-application process is merely pro forma?”
• “You did not acknowledge the receipt of the documentations I sent to you. You never explained how the documentation I sent was not sufficient. You never addressed the issue of a forebearance [sic] which we talked about and which you said could not be evaluated until after the eligibility for a loan adjustment had been denied.”
• “Do provide me with the standards for Freddie Mac which you say I failed to meet, as I previously qualified for this type of help from you and M&T Bank and my circumstances have not changed.”
• “Also, provide me with the name and contact information for your supervisor. . . . and the name and contact information of the appropriate person at M&T Bank for the service of legal process for your acts on their behalf.”

(Id.)

         On March 4, 2015, Bayview sent Mr. Plouffe a “Loan Reinstatement schedule, ” which itemized the amount he had failed to pay, totaling $8, 509.12. (Ex. W.) In a letter dated March 9, 2015, Mr. Plouffe reiterated many of the same requests in his March 1, 2015 letter. (Ex. Y.) There is no evidence that he received a response to his requests, and the defendants do not claim to have responded.

         On March 13, 2015, a foreclosure action was initiated against Mr. Plouffe in Berks County Civil Court. (Ex. Z.)

         On April 16, 2015, Bayview sent Mr. Plouffe two letters, both similar to prior correspondences. One stated again that after repeated attempts, Mr. Collins was unable to reach Mr. Plouffe by phone to discuss potential foreclosure alternatives. (Ex. AA.) The other listed and described alternatives, including forbearance plans, modification, pre-foreclosure sale, and deed-in-lieu of foreclosure. (Ex. AD.)

         Then, on April 20, 2015, Bayview sent Mr. Plouffe a letter providing him with his property valuation report. (Ex. AE.) It stated that the valuation report[12] “was developed as part of your request for mortgage assistance” and that Bayview may use the valuation data when deciding Mr. Plouffe's eligibility for “an assistance option.” (Id.) Mr. Plouffe disputed the valuation in a letter dated December 24, 2014.[13] (Ex. AV).

         On April 30, 2015, Mr. Plouffe submitted another letter to Bayview. (Ex. AG.) The purpose of this letter is unclear from the exhibit provided to the court, but in Mr. Plouffe's objections to the defendants' statement of undisputed material facts, he states that this letter “completed the application.” (Doc. No. 57 ¶ 30.) The “application” appears to be the Borrower Response Package, due March 22, 2015, described in the February 20, 2015 letter from Bayview. (See Ex. U.) Therefore, it appears from the record that Mr.

         Plouffe submitted his application materials over a month after Bayview's deadline. (See Exs. AG, U.)

         This April 30, 2015 letter from Mr. Plouffe to Bayview reflects that Mr. Plouffe was aided in its preparation by Deborah Strunk, a housing counselor at the Berks Community Action Program Budget Counseling Center. (Ex. AG.) In the letter, Ms. Strunk stated that Mr. Plouffe's only income at that time was $194 per month in food stamps, though he had a pending application for Social Security Disability benefits.[14](Id.) Meanwhile, the letter stated, his monthly expenses totaled $2, 334.00, leaving a monthly deficit of $2, 140.00. (Id.) As noted above, this letter and its attached materials (whether they constituted a complete application or not), were submitted over a month after the March 22, 2015 deadline for the Borrower Response Package. (See Exs. AG, U.)

         Starting in May 2015, Bayview sent a series of additional letters. On May 11, 2015, Bayview sent Mr. Plouffe another “Loan Reinstatement schedule, ” which stated that he owed $15, 197.75 as of that date. (Ex. AF.) On June 17, 2015, Bayview sent Mr. Plouffe another letter stating that Mr. Collins had repeatedly tried to contact him by phone but could not-and encouraging Mr. Plouffe to contact Bayview. (Ex. AH.) On August 10, 2015, Bayview sent another letter stating that it had tried to contact Mr. Plouffe and listing options to avoid foreclosure. (Ex. AI.) The options included a “Trial Period Plan, ” which would require Mr. Plouffe to pay $959.68 per month for three months, and which would allow him to pursue loan modification options. (Id.) The letter noted that Mr. Plouffe must call Bayview by August 24, 2015 to participate-and that if he did not respond by then, foreclosure actions would continue.[15] (Id.)

         In his own affidavit, attached as Exhibit A to his objections to the defendants' statement of material facts, Mr. Plouffe states that he did not respond to the “offer of a trial modification”[16] because he “needed a forbearance and not a an [sic] immediate modification payment plan and the matter was being discussed in the state court Diversion Program.” (Doc. No. 57, Ex. A ¶ 18.)

         The defendants state that on August 23, 2015, the day before the August 24 deadline for the “Trial Period Plan, ” the plaintiff “resubmitted an essentially identical and incomplete loss mitigation application.” (Doc. No. 55 ¶ 51; Ex. AM.) The exhibit provided to the court, Exhibit AM, is merely a collection of documents without anything officially deeming them an “application.” In his objections to the defendants' statement of material facts, Mr. Plouffe states that the defendants “failed to include the full application” and again failed “to show how it was incomplete.”[17] (Doc. No. 57 ¶ 51.)

         On September 18, 2015, Bayview sent another letter stating that it had been attempting repeatedly to reach Mr. Plouffe by phone and encouraging him to return the call. (Id.) Three days later, on September 21, 2015, Bayview sent another letter with information about the deed-in-lieu program and again asking Mr. Plouffe to call. (Ex. AK.)

         Mr. Collins responded in writing on September 24, 2015. (Ex. AL.) He stated that Bayview's September 21, 2015 deed-in-lieu offer “appear[ed] to be exactly the same form letter you sent to me earlier this year, to which I responded I was interested, whereupon you ignored my response and expression of interest. . . . Once again, I am indicating my interest and would like to know how much you are offering and what are the terms and conditions.” (Id.) Further, Mr. Plouffe requested that Bayview communicate with him through his housing counselor, “as was discussed at the recent arbitration hearing involving the attorney for Bayview.” (Id.) The facts and evidence presented to this court leave off here, in September of 2015.

         II. PROCEDURAL HISTORY

         Mr. Plouffe initiated this action on October 26, 2015.[18] (Doc. No. 1.) On February 11, 2016, the defendants moved to dismiss the plaintiff's complaint. (Doc. No. 7.) On April 14, 2016, the plaintiff filed his response to the defendants' motion to dismiss and requested to file an amended complaint, which I permitted and which the plaintiff filed on April 19, 2016. (Doc. Nos. 14-16.)

         The defendants then filed their second motion to dismiss on May 9, 2016, to which the plaintiff responded on June 14, 2016 and June 20, 2016. (Doc. Nos. 18, 24, 25.) On October 31, 2016, I granted in part and denied in part the defendants' motion to dismiss-leaving only Mr. Plouffe's FDCPA and RESPA claims, currently before me on summary judgment. (Doc. Nos. 27, 28.) On November 9, 2016, the defendants submitted their answer to the plaintiff's complaint. (Doc. No. 29.)

         On September 8, 2017, the defendants filed a motion for summary judgment, with a statement of undisputed material facts (Doc. No. 55), to which the plaintiff responded (Doc. No. 56) and objected (Doc. No. 57), respectively, on September 29, 2017. On October 9, 2017, the defendants replied to the plaintiff's response. (Doc. No. 59.) On November 20, 2017, the plaintiff submitted a briefing titled “Plaintiff's errata to response to defendants' motion for summary judgment.” (Doc. No. 61.) The defendants' motion for summary judgment is now ripe for decision.

         III. LEGAL STANDARD

         A court shall grant summary judgment where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it would affect the outcome of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed issue is “genuine” if it would allow a reasonable fact-finder to return a verdict in favor of the nonmoving party. Id. Summary judgment is appropriate when the nonmoving party fails to provide evidence “sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The party seeking summary judgment must inform the court of the basis for its motion and identify the portions of the record that demonstrate “the absence of a genuine issue of material fact.” Id. at 323. Relevant portions of the record include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). Alternatively, the moving party can show “that the materials cited [by the nonmoving party] do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Id.

         When determining whether to grant summary judgment, a court must draw “all justifiable inferences” in favor of the nonmoving party and must conclude not whether “the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Anderson, 477 U.S. at 252, 255.

         IV. DISCUSSION

         The defendants argue that summary judgment in their favor is proper based on several arguments-abstention, lack of standing, and substantive application of the FDCPA and RESPA. Based on the following analysis, I will grant summary judgment in the defendants' favor on all claims, after examining the merits of the plaintiff's FDCPA and RESPA claims. Even viewing the facts in the light most favorable to Mr. Plouffe, a reasonable jury could not find in his favor under either applicable statute.

         A. Abstention and Claim Preclusion

         1. The State Court Dismissed the Claims at Issue

         The defendants argue that summary judgment in their favor is proper because Mr. Plouffe's federal claims were also pending in the state court foreclosure action, where Mr. Plouffe supported his claims with the exact ...


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